John Roberts - Reagan Era Documents Speak to School Prayer and Abortion

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Nearly 5,400 documents were released August 15, 2005 from the four years (1982-86) that Supreme Court nominee John Roberts worked as associate White House counsel in the Reagan Administration.

The following are excerpts from memos and letters written by Roberts on issues ranging from school prayer to abortion.

John Roberts advised the White House to support congressional efforts to allow school prayer, arguing that a Supreme Court ruling striking down the practice "seems indefensible."

In a Nov. 21, 1985 memo, Roberts was responding to a move by Congress to permit "group silent prayer or reflection in public schools." He said he would not object if Justice Department officials announced that President Reagan had no formal role in passing an amendment to that effect, but said he would support such a move.

The Supreme Court's conclusion that "the Constitution prohibits such a moment of silent reflection -- or even silent 'prayer' -- seems indefensible," Roberts wrote in a memo to White House counsel Fred Fielding.

Earlier, in a June 4, 1985 memo, Roberts commented on the Supreme Court's decision prohibiting school prayer. While justices struck down an Alabama statute mandating a one-minute moment of silence, "careful analysis shows" it was on technical grounds, he said.

Roberts said that a majority of justices would allow a similar law if it were worded more carefully to avoid expressing a religious purpose behind the measure.

The Alabama law was struck down because of the "peculiarities of the particular legislative history, not because of any inherent constitutional flaw in moment of silence statutes," Roberts wrote in a memo to Fielding regarding the Supreme Court decision in Wallace v. Jaffree.

As a senior legal adviser to President Reagan, John Roberts concluded that a memorial service for aborted fetuses, organized by a group of California doctors who opposed Roe v. Wade, was "an entirely appropriate means of calling attention to the abortion tragedy."

The words of the Supreme Court nominee were contained in an October 1985 memo in which he approved a telegram from Reagan supporting the service promoted by the California Pro Life Medical Association.

"The president's position is that the fetuses were human beings, or at least cannot be proven not to have been, and accordingly a memorial service would seem an entirely appropriate means of calling attention to the abortion tragedy," wrote Roberts.

The memorial service came at the end of a three-year battle over how to dispose of some 16,000 fetuses discovered in February 1982 in sealed plastic bags of formaldehyde and stored in a bin outside the California home of a man who had managed a medical laboratory. The then-closed laboratory routinely examined aborted fetuses for clinics and hospitals.

The Feminist Women's Health Center of Los Angeles, a pro-abortion group, had sued to stop Los Angeles county from giving the fetuses to the Catholic League for religious burial.

The dispute reached the U.S. Supreme Court, which upheld lower court decisions that the county could bury or cremate the fetuses but could not arrange or join in religious services.

In February 1986, John Roberts drafted a letter for a White House official to a lawmaker who had raised concerns that President Reagan might pardon people who had been convicted of bombing abortion clinics. No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals, Roberts wrote, adding that neither the cause nor the target of their violence will in any way be considered to mitigate the seriousness of their offense against our laws.

The memos detail White House requests for Roberts' advice in response to news accounts in 1986 that Reagan was considering pardoning convicted clinic bombers.

Then-Rep. Romano Mazzoli, D-Ky., had written Reagan to express his "great distress" that leaders of two anti-abortion groups were quoted as saying that Reagan was open to clemency on a case-by-case basis. "Those who resort to violence ... should be condemned and proscribed, not pardoned," Mazzoli wrote.

Roberts and his immediate superior, deputy White House counsel Richard Hauser, said that a strongly worded reply was needed to dispel any hint of leniency for clinic bombers. "The president unequivocally condemns such acts of violence and believes that those responsible should be prosecuted to the full extent of the law," their draft reply said.

The correspondence clearly undercuts false assertions made by NARAL Pro-Choice America in an television ad linking Roberts to abortion clinic violence. The ad was finally pulled by NARAL after universal criticism that the claims made were false.

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